February 21, 2018

Anita S. Krishnakumar (St. John's University - School of Law) has posted Passive Avoidance on SSRN. Here is the abstract:

In its nascent years, the Roberts Court quickly developed a reputation — and drew sharp criticism — for using the canon of constitutional avoidance to rewrite statutes in several controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn — quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court’s most recent terms — doing significant work in only one majority opinion since 2012.

This paper examines the Roberts Court’s recent shift in approach to the avoidance canon. It departs from the conventional wisdom about the Roberts Court and the avoidance canon in several important ways. First, it posits that the conventional view about the Roberts Court’s aggressive use of the avoidance canon may itself have contributed to the Court’s shift away from invoking the avoidance canon in recent cases — as the Court has ratcheted down its use of the canon in response to commentators’ attacks against its early term avoidance reliance. Second, the paper argues that the recent Roberts Court has adopted a “passive” rather than aggressive form of avoidance, in which it effectively avoids deciding controversial, unresolved constitutional questions — but without invoking avoidance and without openly admitting to rewriting or straining the statute’s text. Third, and perhaps most importantly, the paper uncovers several new tools of “passive avoidance” that the Court has employed to do the work previously performed by the avoidance canon. In the end, it posits that passive avoidance may actually be a good thing — and the truest form of constitutional avoidance.

Philip Alston (New York University School of Law) has posted The Populist Challenge to Human Rights (Journal of Human Rights Practice, Volume 9, Issue 1, 1 February 2017, Pages 1–15) on SSRN. Here is the abstract:

The nationalistic, xenophobic, misogynistic, and explicitly anti-human rights agenda of many populist political leaders requires human rights proponents to rethink many longstanding assumptions. There is a need to re-evaluate strategies and broaden outreach, while reaffirming the basic principles on which the human rights movement is founded. Amongst the challenges are the need to achieve more effective synergies between international and local human rights movements and to embrace and assert economic and social rights as human rights rather than as welfare or development objectives. It will be crucial to engage with issues of resources and redistribution, including budgets, tax policy, and fiscal policies. There is a need for collaboration with a broader range of actors, to be more persuasive and less didactic, and to be prepared to break with some of the old certainties. Academics should pay attention to the unintended consequences of their scholarship, and everyone in the human rights movement needs to reflect on the contributions each can make.

As the investigation into President Trump's campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of Justice and the Independent Counsel disagreed about whether the President, as head of the executive branch under Article II, could direct individual prosecutions if he so chose. The Supreme Court in United States v. Nixon left the issue unresolved and has never revisited it.

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.

Professors Barton Beebe and Jeanne Fromer's empirical tour de force presents a strong challenge to the conventional wisdom that there are infinite potential trademarks. To be sure, the claim that potential trademarks, broadly defined, are inexhaustible is tautologically true: there are infinite combinations of letters and other symbols-including sounds and colors-any of which might serve as a mark. In this sense, the claim that we might run out of trademarks seems as absurd as John Stuart Mill's concern that we might run out of music. But not all marks are created equal. Some combinations of letters are unwieldy or unmemorable; others have negative connotations. Beebe and Fromer argue that the most valuable marks are common words, short and pronounceable neologisms, and common U.S. surnames. The concern about running out of these marks is far from absurd-just as Mill's anxiety about running out of music makes much more sense when confined to three-note melodies such as the trademarked NBC chimes, of which there are only 469 possibilities.

In this short space, I wish to laud the remarkable descriptive contribution of "Are We Running Out of Trademarks?" while sounding a note of caution on the normative implications. Beebe and Fromer's data convincingly demonstrates that short, common word marks are becoming depleted and congested, and they present a number of plausible hypotheses about the negative welfare impact of this trend. Their findings suggest that trademark policy has been based on false assumptions and should be closely reexamined. But their data cannot elucidate the actual costs of depletion or congestion-particularly without noting how the market will adapt to reduce these costs-and cannot reveal if there are countervailing benefits. Generating concrete evidence of these costs and benefits seems like a necessary next step before recommending any significant changes to the current trademark system. After offering a laudatory evaluation of the value of Beebe and Fromer's descriptive work, I explore why reforms in reaction to their research should proceed cautiously, and I suggest important avenues for future empirical work to build on these results.

This article aims to contribute to the academic debate on the general crisis faced by law schools and the legal professions by discussing why juristic practice is a matter of experience rather than knowledge. Through a critical contextualisation of Vilhelm Lundstedt’s thought under processes of globalisation and transnationalism, it is argued that the demise of the jurist’s function is related to law’s scientification as brought about by the metaphysical construction of reality. The suggested roadmap will in turn reveal that the current voiding of juristic practice and its teaching is part of the crisis regarding what makes us human.

This essay, forthcoming in Reproductive Rights and Justice Stories, maps the legal question of parental recognition onto evolving principles of sexual orientation equality. It does so through the lens of Brooke S.B. v. Elizabeth A.C.C., a 2016 New York Court of Appeals decision that illustrates both the opportunities and limitations when parentage law embraces sexual orientation equality.

In some earlier disputes on the rights of non-biological parents in same-sex couples, LGBT advocates framed sexual orientation as largely irrelevant. Courts should adopt more capacious understandings of parenthood, advocates argued, to protect parents and children, regardless of sexual orientation. But as the legal, political, and social environment became more affirming of LGBT people and their families, LGBT advocates urged courts to adopt more capacious understandings of parenthood, not only to protect parents and children, but also to vindicate principles of sexual orientation equality.

This essay shows how an emphasis on sexual orientation equality can shape approaches to parental recognition in ways that yield recognition for some families - namely, same-sex couples and others using assisted reproductive technologies (ART) - while leaving other families in an uncertain state - namely, families in which the non-biological parent did not participate in the plan to have the child but nonetheless raised the child. This distinction captures differences between intent and function. An intentional approach to parental recognition focuses on adults' plans with respect to parenting, often looking to decisions made well before the child's conception. A functional approach to parental recognition attends to the existing parent-child relationship, asking whether, with the consent of the legal parent, the individual claiming parental rights formed a bonded parental relationship with the child. In short, intentional parenthood focuses on the decision to have a child, while functional parenthood focuses on the act of raising the child.

The Brooke S.B. court adopted an intentional standard, and connected its approach to respect for same-sex couples' families and to emergent constitutional and family-law principles of sexual orientation equality. Nonetheless, the court explicitly left open the possibility for a functional test that would reach beyond the same-sex parents before it. Eventually, judges and lawmakers in New York might come to appreciate that a functional approach would in fact further sexual orientation equality by offering more comprehensive protection to non-biological parent-child relationships.

The international copyright system requires all participants to recognise a freedom for fair quotation that covers much of the ground encompassed by the notion of ‘fair use.’ The obligation derives from Article 10(1) of the Berne Convention and thus applies to some 174 countries (and, because Article 10(1) must be complied with under TRIPS, is carried over into the WTO Agreement). In contrast to other limitations in Berne, Article 10(1) is not optional, it is mandatory. It creates an obligation, and thereby imposes a ceiling on the freedom of action of Members of the Union. The breadth of the obligatory exception is wide: as enacted in national law, it should not be limited by work, nor by type of act, nor by purpose. The exception should not be subjected to additional conditions beyond those recognised in Article 10: to do so is to breach the obligation. Subject to those conditions, the freedom the Article secures to users encompasses any and every act of quotation, the meaning of which reflects how the term is ordinarily used across all cultural forms. That includes free-standing uses, transformative uses and parodic uses. Its breadth reflects, but is not limited by, the desire to give effect to the fundamental freedom, freedom of expression. We have dubbed this ‘global, mandatory, fair use’, or GMFU, for short.

Yet, despite this obligation, there has been a marginalisation of Article 10(1) and this paper explores how, and why, this distortion of international obligations has occurred. It suggests the dangers of pluralism in copyright when it comes to international obligations.

As technology and interconnectivity have continued to flourish, so too has an important and complex form of enterprise: the platform. Services like Uber, Google Search, Hulu, and American Express cater to distinct but deeply-interdependent “sides” of customers that derive value or revenues from one another, such as the patients and care providers on a health insurance network, or the advertisers and consumers on a social media platform. A hallmark of “two-sided markets”—those in which platforms compete—is the need to get both sides on board. The platform cannot operate successfully without a critical mass of users on both sides, which is often challenging.

Platform economics has important implications for antitrust policy, as the interdependence between sides adds new complexity to the evaluation of competitive effects. It becomes critical to discern whether a platform-defendant’s conduct is plausibly necessary to get both sides on board. Until recently, courts had dealt with platform commerce only on an ad hoc basis, without articulating any general principles for evaluating restraints within two-sided markets. But the Supreme Court is poised to bring platform competition to antitrust’s frontier, as its impending decision in American Express is likely to influence how core aspects of antitrust law and procedure are to be applied within two-sided markets moving forward.

Against this backdrop, this article provides a broad analysis of antitrust in two-sided markets. It begins with a discussion of the distinctive features of platform commerce, explaining how they sometimes clash with established intuition and methods in antitrust. The bulk of the paper addresses a wide range of different antitrust concerns that might emerge from platform conduct, with emphasis on discerning when the market’s two-sidedness might plausibly justify the practice in question (and when it probably doesn’t). The balance of the paper then addresses the issues in American Express—both the market definition and burden shifting questions before the Supreme Court, and the substance of the original antitrust claim.

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause. Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken.

Parole is an integral part of punishment: it determines how much time people will serve on their sentences. Until the 21st century, black-letter law forbade even modest parole changes that were adverse to prisoners. If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only. Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole–ex post facto doctrine by 180 degrees. Prisoners can no longer prevail even when the change in the state parole regime is almost certain to lead to significantly longer sentences.

In the context of parole, the courts have repudiated past doctrine and strayed far from the purposes of the Ex Post Facto Clause. In this article, we review the history, show how the current case law is misguided and illogical, and put forward a new framework that would restore the Ex Post Facto Clause to its rightful place.

The Courts should never bow to public opinion in finding a racially discriminatory law is a good thing. Strict scrutiny demands that the courts disregard any such popular opinion and determine for themselves whether such a law is the narrowly tailored response to a compelling need. Hence even supposing that Jim Crow laws were popular among Americans, the judiciary’s function was to be a counterweight to such popular sentiment. But what about the other way around? If popular opinion opposes racially discriminatory policies, should those policies ever survive strict scrutiny? This essay takes the position that in such a case, the concept of the judiciary as a counterweight to popular opinion evaporates. The point of strict scrutiny is to put a very firm thumb on the scale against laws and policies that discriminate on the basis of race. If most American believe that a racially discriminatory law or policy is bad public policy, it is not easy to see how the courts could find it a narrowly tailored response to a compelling need.

February 19, 2018

In this paper I'm primarily concerned with framing the role of precedents in terms of reasons that they can give to judges in various legal systems. The main purpose of the paper is to identify the ways in which precedents can be authoritative in judicial reasoning. First, I'll explain the distinction between two kinds of precedents - precedents of solution and precedents of interpretation. Second, I'll identify the ways in which both precedents of solution and precedents of interpretation affect the reasoning of future courts, and focus on the cases in which this affection can be considered practically and epistemically authoritative. Finally, I'll consider the conditions under which it can be epistemically justified to treat precedents as authoritative, with a focus on the possibility of justifying the epistemic authority of interpretative precedents.

Despite tributes paid to Fuller as an intellectual father of Alternative Dispute Resolution (ADR), little attention has been paid within the ADR field to the broader interactionist vision that underlies Fuller’s discussion about process. A closer reading of Fuller’s study of mediation, however, reveals that he intended that study to substantiate his interactionist thesis about the nature of social ordering. He understood ordering to be generated by and to reflect a particular experience of social interaction. Fuller’s interactionist vision recognizes the creative, choice-making and purposive dimensions of human reality, emphasizes participation as a normative criterion for institutional design, and gives rise to a pluralistic notion of power arrangements. It appears in Fuller’s thinking about process as a kind of dialectic and integrative mindset that pervades his means-ends analysis, functional analytical approach and his emphasis on institutional design. This interactionist vision has particular relevance for the practice and research of ADR, for example, in helping to develop a more integrative approach to process pluralism.

My forthcoming (2019) dissertation raises the question whether European constitutional scholarship has adequately dealt with some of the challenges American Legal Realists have launched.

There, I undertake to reconstruct some of the claims of American legal realism so as to be able to critically subject European constitutional scholarship to these claims. Conversely, I (re)construct some theoretical and methodological answers that have been proffered so as to fend off the aforementioned challenges. The defense resting on the justificatory focus of legal scholarship (as opposed to a focus on discovery) has been one of the common responses, as I try to explain below, to dislodge realist criticism.

Relativizing the context distinction in the context of legal scholarship, as I will try to do here, does not by itself provide a conclusive argument for a reconceptualization of doctrinal scholarship. However, in my dissertation I offer additional arguments to establish the need for this reconceptualization, focusing on the relativity of the autonomy of the law as an object of inquiry for legal scholarship, and discussing the concept of “reification” as I see it emerging out of legal realist thought. This is a work in progress, which I am happy to discuss further.

Shmuel I. Becher (Victoria University of Wellington) & Tal Zarsky (University of Haifa - Faculty of Law) have posted Minding the Gap on SSRN. Here is the abstract:

The digital world has become part of our DNA. The way e-commerce, human behavior and law interact and affect one another has come to be of enormous significance. Among other things, the internet equips consumers with a variety of platforms to share information of a volume unimaginable before. As part of this development, online information flows allow consumers to learn about businesses and their contracts efficiently and quickly. Consumers can become informed by coming across the impressions that other, experienced, consumers share and spread. Potentially, consumers may familiarize themselves with the contents of contracts through the experiences of other consumers.

Online and offline, relations between consumers and businesses are most frequently governed by consumer standard form contracts. For decades such contracts have been assumed one-sidedly biased against consumers. Consumer Law seeks to alleviate this bias and empower consumers. Legislatures, consumer organizations, scholars and judges constantly look for ways to protect consumers from unscrupulous firms and unfair behaviors.

From a legal perspective, consumers–businesses relations are administered by standardized contracts. Nonetheless, firms do not always follow these contracts in practice. Sometimes there is significant disparity between what the written contract stipulates and what consumers experience de facto. Interestingly, firms often deviate from the written contract in favor of consumers (“the Gap”). In other words, firms often take a lenient approach despite the stringent written contracts they draft. This essay examines whether, counter-intuitively, policy makers should add firms’ leniency to the growing list of firms’ suspicious behaviors.

Many legal regimes seek ways to cope with unfair contract terms in consumer contracts. Naturally therefore consumer law should enable, if not encourage, firms’ lenient practices. Firms’ willingness to deviate from their strict contracts to benefit consumers seems like a sensible approach. Apparently, such behavior should not be second-guessed.

However, this essay asks whether, counter-intuitively, consumer law should sanction firms that create a Gap and exploit it. The essay proposes that firms’ lenient approach, coupled with online tools and human psychology, may occasionally have surprising and harmful qualities. It illustrates how technological changes can turn the Gap into a key component in consumers' understanding, or perhaps misunderstanding, of consumer contracts. It examines when firms’ leniency should be considered manipulative or exercised in bad faith. It then explores whether firms should be allowed to enforce the written contract even if they deliberately and consistently deviate from it.

The main contribution of this essay is threefold: First, it points to the Gap and examines its origins. Second, it illustrates how the Gap complicates the interplay between reputation, conduct, trust and the need to protect consumers. It asserts that at the end of the day the Gap may blend into a toxic mix that distorts consumers’ perception and undermine rational decision-making. Third, it identifies key questions policy makers and courts should consider in respect of this said Gap.

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines, reflects a legitimacy-based view. In the Equal Protection context, courts have set out how discriminatory goals are not legitimate state interests. In the Executive action context, courts state that absent a legitimate and bona fide justification, the Executive may not have power delegated from Congress to act. What courts have not done is specified what happens when the hammer falls: how intent disables government policymaking and for how long. The legitimacy-focused approach can neutralize government decisions, even when the government tries to re-do its policy and claim new reasons. Third, I argue that a legitimacy-focused approach towards constitutional intent doctrine that I advance in this Article is normatively preferable. The approach does incentivize insincere reasons for government actions. However, I argue that advantages outweigh those costs. There are real benefits to even insincere expressions of non-discrimination. Conversely, when the government makes discriminatory statements, this is very strong evidence of discriminatory motive. During a time of nationwide litigation of intentional discrimination claims in areas including immigration rights, voting rights, and religious non-establishment, it has never been more important to set out the doctrine, the costs, and the consequences of unconstitutionally illegitimate intent.

Hyper-polarization and tendency to embrace “alternative facts” on just one end of the political spectrum has implications for judicial review of administrative agencies. A principal rationale for deferential judicial review is that agencies are technocratic experts. Courts, as non-experts, defer to agencies in part because they trust the integrity of agencies’ technical analyses and judgment. But in an age of hyper-polarization – and at minimum a partial rejection of the scientific method in favor of alternative facts – deference based on agencies’ technical competence is less justified. Instead, courts cannot as readily assume that agencies’ technical, expert, “factual” analyses and conclusions are well-supported. Deference based on technocratic expertise is particularly questionable when an agency shifts its position after an election by rejecting the previous administration’s policy and adopting a dramatically different one. Such policy swings typically occur around focal points of partisan hyper-polarization – it is with respect to such focal point issues that the assumption of technocratic competence is least tenable.

Building on this insight about the effects of hyper-polarization, we argue for a re-assessment of how courts review administrative agency changes in policy. While some precedent suggests that agencies face an especially “hard look” when they deviate from past practices or approaches, the United States Supreme Court’s decision in FCC v. Fox Television Stations, Inc. is generally read as establishing the same level of deferential review when an agency shifts course as when it stays the course or addresses an issue for the very first time. And, as a normative matter, scholars have argued for deferential review regarding agency shifts so as to avoid agency “ossification” and bureaucratic inertia – to give effect to the values of the party that just won power because, in a democracy, elections must matter.

Nonetheless, we believe that Fox need not – and should not – be read to preclude courts from adopting the kind of judicial review our age of hyper-polarization justifies. In particular, Fox supports courts holding agencies to a high standard in explaining why the facts that a previous administration relied upon are no longer true or relevant or no longer weigh heavily in favor of conclusions reached by the previous administration. Notably, nothing in Fox prevents courts from either seriously questioning an agency about what new facts support its recent policy change, or from interrogating the basis for those newly claimed facts. A broad but fair reading of Fox also supports courts calling on agencies to meaningfully explain how their shifts will affect reliance interests, broadly understood, and how the agencies sought, if they did, to meaningfully take account of those reliance interests. One of our goals here is to rebut the claim recently made by Trump’s EPA that current case law allows an agency almost unlimited discretion to discard the rules adopted during a previous Presidential Administration.

February 18, 2018

You need to know Hohfeld! Why? Because W.N. Hohfeld’s typology of rights from his book Fundamental Legal Conceptions is fundamental. And useful!

Law students encounter the idea of right (moral or legal) early and often. But “rights talk” is frequently “loose talk.” Hohfeld is famous for exposing the ambiguity in the concept of a right and resolving that ambiguity with a typology of rights that distinguishes between claims, liberties, authorities, and immunities. This post is a quick and dirty introduction to Hohfeld for law students (especially first year law students) with an interest in legal theory.

Types of Rights and Correlative Duties

Lawyers tend to mush all legal rights together into a single category. The right to privacy, the right to freedom of speech, property rights, and civil rights—these diverse legal phenomena are frequently treated as if the “right” involved in these diverse cases was a single unambiguous type. Hohfeld’s first contribution was to distinguish different types of rights. Claim rights, for example, create corresponding obligations. Thus, my right to exclusive use of my land entails a corresponding duty of noninterference. You have a duty not to enter upon my land. But my property right also entails my liberty to use my land in a wide variety of ways—to build a house, plant a garden, and so forth. Correlated to that liberty is a correlative absence of inconsistent claim rights. You have no right to prevent me from building a house or planting a garden. Some legal rights involve powers over others. Thus, an employer has a right to control and direct the employee’s actions at work, and parents have authority over their children. Finally, there are immunities from authority. Thus, when children reach the age of majority or are legally emancipated they acquire immunities that disable the authority rights of their parents.

Implicit in our discussion so far is Hohfeld’s second big idea, which is that each kind of right (claim, liberty, authority, and immunity) has a correlative legal consequence for others. Claim rights have correlative duties. Liberty rights correlate with an absence of claims. Authority rights correlate with liabilities. Immunities correlate with the absence of authority.

Four Types of Rights

The following list enumerates Hohfeld’s basic schema, identifying each kind of right and the correlative legal consequence. P is the party with the right. Q represents the person or group of persons on whom the right has a legal effect. X represents the object of the right.

Claim Rights

Rights relation: P has a claim against Q to X.

Correlative relation: Q has a duty to P to X.

Liberty Rights

Rights relation: P has a liberty against Q to X.

Correlative relation: Q has no claim against P to not-X

Authority Rights:

Rights relation: P has authority over Q to X

Correlative relation: Q has a liability to P to X.

Immunity Rights

Rights relation: P has an immunity against Q to X.

Correlative relation: Q has a disability (no authority) against P to not-X.

Moral and Legal Rights

Hohfeld was interested in legal rights, but we can extend his scheme to moral rights. Thus, if I have a moral claim right to performance of a promise, you have a corresponding moral duty to perform. Of course, many legal rights are identical to (or substantially the same as) similar moral rights. Contracts, for example, create both moral and legal obligations. Some moral rights, however, may not be reflected in the law. For example, I may have a moral obligation not to discriminate on the basis of race when letting a room in my home, but at the same time have a legal liberty right to engage in such discrimination.

Life is fundamentally uncertain. We do not know whether it will rain, whether the market will go up or down, whether our unhealthy eating choices will have serious consequences, or whether terrorists will strike our city. To make matters worse, we also lack a tried and true procedure for evaluating the likelihood of such events. Yet we are required to make decisions great and small that depend on these events. In the absence of certainty or an objective procedure for estimating probabilities, we must rely on our own reasoning, which a great deal of research has shown to be less rational than we would like to believe.

In Critical Thinking, Varda Liberman and Amos Tversky examine how we make judgments under uncertainty and explain how various biases can distort our consideration of evidence. Using everyday examples, they detail how to examine data and their implications with the goal of helping readers improve their intuitive reasoning and judgment. From the courtroom to the basketball court, cholesterol count to the existence of the supernatural, Liberman and Tversky explore the fundamental insights of probability, causal relationships, and making inferences from samples. They delve into the psychology of judgment, explaining why first impressions are often wrong and correct answers go against our intuitions. Originally written in Hebrew and published by the Open University in 1996, Critical Thinking is an essential guide for students and interested readers alike that teaches us to become more critical readers and consumers of information.

And from the reviews:

This masterpiece is the fruit of long-term collaboration between Varda Liberman and Amos Tversky, the master of judgment and decision making. It is both a wonderful leisure read and a source of material for a fascinating undergraduate course. Readers will be inspired to think critically about their own reasoning. Some of them will likely report in a few years that this was the book that ushered them into the world of human reasoning and statistical inference.--Ariel Rubinstein, Tel Aviv University and New York University

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems.

The Supreme Court has long imposed on the judiciary a due process requirement of neutrality. Any temptation to the reasonable judge to decide a case other than on its merits is deemed unconstitutional, even in the absence of any showing of actual bias. The Court has been wisely willing to risk over-enforcement of the neutral adjudicator requirement, rather than under-enforcement. In the administrative context, however, the Court has imposed the exact opposite presumption: that absent a clear showing of bias, administrative adjudicators will be assumed to satisfy due process, even though they are part of the very agency instituting the adversary proceeding and will often have played a direct role in the institution of the proceeding. This Article argues that because of their built-in connections to the interests of the agencies for which they work, administrators should be deemed at least as inherently suspect, for due process purposes, as are judges. As in judicial proceedings, property or other constitutional rights may well be at stake, and due process protections are triggered equally in both contexts. The Article acknowledges the practical reality that many will consider it simply too late in the day to force so sweeping revisions in the administrative process, despite the serious constitutional problems it raises. Therefore as a second line of attack, the Article argues that a categorical exception be made to the blanket assumption of administrative adjudicatory neutrality for those cases challenging the constitutionality of agency action. In such situations, the administrators’ connection to their own agencies renders them inherently ill-equipped to neutrally adjudicate such challenges. This is particularly so, the Article argues, when First Amendment rights of free expression are implicated. Because of their simultaneous importance and fragility, the Article argues that plausible claims that proposed agency adjudicatory action will contravene a regulated party’s First Amendment rights should be allowed to reach the courts prior to the conduct of the administrative proceeding.

Did you know that cognitive biases can affect your relationships with clients? Do you know the most important cognitive bias for defense attorneys in jury trials? Do you know why traditional sexual harassment training doesn’t work? Did you know that it is easy to make an ethical violation, even if you didn’t intend to? Did you know that cognitive biases can lead to malpractice suits?

This book helps lawyers and future lawyers understand the cognitive biases that can affect their law practices. It introduces lawyers to cognitive biases and how to overcome them. It demonstrates how to think more clearly and how to avoid being manipulated by others through cognitive biases. It also explains how you can use cognitive biases in persuasion. Finally, it demonstrates how attorneys can avoid unconscious ethical lapses.

The first part of this book (Chapters 1–5) introduces cognitive biases. It will help you understand these biases, show how these biases work in the law and legal profession, and give exercises so that you can develop the ability to overcome your cognitive biases. Chapter 6 will go into more depth by showing how the cognitive biases fit into a model of moral reasoning. Chapter 7 will demonstrate how cognitive biases affect legal ethics (behavioral legal ethics). Chapter 8 will present special problems concerning cognitive biases and the legal profession. Chapter 9 will contain additional exercises on cognitive biases in general, and Chapter 10 contains review exercises focused on lawyers and the practice of law.

As the rampant speculation over Justice Kennedy's retirement plans makes clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree whether political factors predict retirement.

This Article identifies key reasons why past studies have found Justices' retirement decisions inexplicable. No studies measure whether Justices actually succeed in obtaining like-minded successors. Nor do past studies consider accurate measures of ideology while controlling for retirements forced by health. This empirical study of modern-era retirements addresses each of these shortcomings. It constructs more accurate measures of ideology by using voting records to pinpoint ideological similarities or differences between Justices, presidents, and Senators who may appoint a successor. It also differentiates between voluntary retirements and involuntary retirements forced by health. Finally, by comparing the votes of a Justice and his or her successor relative to other Justices on remaining on the Court, this study offers the first measure of Justices' success in obtaining like-minded replacements.

The analysis reveals that Justices have had limited opportunities to retire to ideologically compatible presidents and Senates, and even then, limited success in obtaining like-minded replacements. Not all Justices had opportunities to time their retirements politically. Health problems forced many Justices to leave at politically inopportune times, and some Justices near the center of the Court were ideologically distant from leaders of both parties by the time they retired. Further, even Justices who retired to ideologically compatible presidents rarely obtained a successor who closely replicated the retiring Justice’s voting behavior. Limited success in obtaining like-minded replacements explains why Justices flout calls to retire to presidents who share their ideology.

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.

Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical context. This understanding informs the treatment of precedent in concrete disputes as well as the locus of authority over the rules of precedent within the federal system. It also explains why the Supreme Court may legitimately reaffirm constitutional precedents even when they are flawed.

This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews Article V of the United States Constitution setting out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, if not the hardest. constitution in the world to change. It goes on to discuss possible limits on the substance of constitutional amendments. Some of these are set out in Article V but, as some other jurisdictions have recognized, there may be further, implicit restrictions based on the distinction between constitutional amendment and constitutional replacement. Many issues associated with constitutional amendment remain unresolved as a result of the Supreme Court’s reluctance to pronounce on the validity of amendments. Finally, the report compares the Article V process to the very significant constitutional change that has been accomplished through the constitutional interpretation of the United States Supreme Court. It concludes that jurisdictions like the United States where the constitution is treated with undisguised reverence, face a dilemma. Limiting constitutional revision to the formal process will eventually result in a constitution that is radically unsuitable for a modern society. But allowing irregular modification by judges sacrifices the key values of security, stability and predictability, the reasons we have a written constitution in the first place.

If freedom of speech protects a marketplace of ideas – what is its proper currency? Is it only the force of the arguments brought forth – or is it money as well? For the current majority of the U. S. Supreme Court the answer under the U. S. Constitution seems clear: Freedom of speech must include the right to unfettered use of money in the competition. For the Court, the marketplace of ideas turns into a literal, economic marketplace. In what follows I will agree with most American scholars who sharply criticize this reading of the First Amendment. I will join in this critique, however, as somebody who genuinely admires the strong protection of free speech in the United States. I think Europe stands to learn a lot from the American model – but I agree with most scholars in the United States that the Supreme Court’s campaign finance decisions, especially since Citizens United (2010), do not do justice to that worthy American free speech tradition itself.

February 15, 2018

Ryan T. Anderson (The Heritage Foundation) has posted Marriage, the Court, and the Future (Harvard Journal of Law and Public Policy, Vol. 40, No. 2, 2017) on SSRN. Here is the abstract:

The Supreme Court’s ruling in Obergefell v. Hodges is a serious setback for Americans who believe in the Constitution, the rule of law, self‐government, and marriage as the union of husband and wife. The Supreme Court has not simply decided a case incorrectly, it has damaged the common good and harmed our republic. The ruling is as clear of an example of judicial usurpation as we have had in a generation. Nothing in the Constitution justifies the redefinition of marriage by judges. In imposing on the American people its judgment about a policy matter that the Constitution leaves to citizens and their elected representatives, the Court has inflicted serious damage on the institution of marriage and the Constitution.

In this Article, I first dissect the argument of the majority opinion striking down conjugal marriage laws. Then I turn to the dissenting opinions, which expose the utter failure of the majority opinion as a work of constitutional law. I then consider two harms that follow from the judicial usurpation of politics on this question before turning to the substantive issues. While the Constitution is silent on which view of marriage is correct, some people simply assert that there is no rational basis, no public reason, for viewing marriage as the union of husband and wife. So after discussing the Obergefell decision itself, I turn to the question at the heart of the debate: the nature of marriage. I sketch a philosophical defense of marriage as the union of husband and wife, I explain why this matters for public policy, and I close the Article by showing three likely harms of the redefinition of marriage, whether it be accomplished democratically or, as in the United States, judicially.

Ori J. Herstein (The Hebrew University of Jerusalem, Faculty of Law) has posted Legal Luck (Rutledge Companion to the Philosophy of Luck Ian M. Church & Robert J Hartman eds. (Forthcoming)) on SSRN. Here is the abstract:

Explaining the notion of "legal luck" and exploring its justification. Focusing on how legal luck relates to "moral luck," legal causation and negligence, and to civil and criminal liability.

Recommended. For an introduction to moral luck, see the Stanford Encyclopedia of Philosophy entry: Moral Luck by Dana Nelkin.

Paul B. Miller (Notre Dame Law School) has posted The Identification of Fiduciary Relationships (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., The Oxford Handbook of Fiduciary Law (New York: Oxford University Press, 2018)) on SSRN. ere is the abstract:

This chapter in the forthcoming Oxford Handbook of Fiduciary Law provides synthetic analysis of the law on fiduciary relationships, focusing on the identification of fiduciary relationships and fiduciary relationship formation and termination. The chapter discusses status- and fact-based methods of identifying fiduciary relationships, as well as analogical and definitional variants on these methods. The chapter concludes by highlighting the increasing convergence on powers-based definitions of the fiduciary relationship, and by explaining the merits of definitional reasoning.

This is an intervention in long-standing debates in the philosophy of law and the theory of professional ethics. In jurisprudential terms, it elaborates on H.L.A. Hart’s concept of the internal point of view, which is the perspective of one who views the law as creating obligations, not merely affecting one’s prudential calculations. In other words, Hart’s idea is that the law must be capable of normativity. Hart limited this conceptual requirement to judges, who are obligated to take the internal point of view, leaving a deeply important open question concerning the attitude that citizens and their advisors must take with respect to the law. The argument in this Article is that it is a constitutive principle of the professional obligations of lawyers that they regard the law from the internal point of view. From this obligation flow further, more specific duties of good faith in interpretation of the law. The Article therefore connects scholarship on the nature of law with more practical questions concerning the duties of lawyers advising clients. It provides an analytically rigorous approach to evaluating the conduct of lawyers in high-profile scandals such the Panama Papers revelations, the so-called torture memos prepared by lawyers in the Bush Administration, and Acting Attorney General Rod Rosenstein’s memo explaining the firing of FBI Director James Comey. The position defended here differs from both the Nineteenth Century "wise counselor" conception of lawyer professionalism and the standard conception of legal ethics as "zealous advocacy within the bounds of the law." It is in some ways an elaboration on some of my previous scholarship on legal ethics and interpretation of law, but is grounded much more explicitly not only in Hart's notion of the internal point of view but - perhaps surprisingly - also in Lon Fuller's insight that law is a purposive activity characterized by giving reasons of a certain type in justification of one's actions.

Over the past two centuries, public environmental regulation (PER) has been progressively supplemented by private transnational regulation (PTR), creating a hybrid environmental governance regime. A five-category typology is developed to describe the ways in which international and national PER interact with private forms of environmental regulation. We then analyze the policy considerations that are relevant to the design of such hybrid regimes and various forms of interaction. Next, we describe two case studies that demonstrate the diversity of interactions between PER and PTR in a single regime. The case of sustainability reporting illustrates how public law builds on the expertise developed by private organizations as gradually more reporting obligations are incorporated into public law. The case of sustainable forest management regulation is somewhat more mixed, reflecting a tendency for increased state intervention, which led to partial suppression of PTR.

The collection of papers presents an overview of the study of the Analytic Legal Philosophy in Russia. Over the last few years in Russia have been translated into Russian language and are widely used in philosophical and scientific literature classical works of H. Hart, L. Fuller, J. Finnis, R. Dworkin, etc. In papers of Russian philosophers and lawyers Vitaly Ogleznev and Anton Didikin opens up new arguments to the discussion about the theory of speech acts and its application to the conception of Herbert Hart, as well as critical arguments and interpretation of arguments W. Quine in legal epistemology.

This paper seeks to contribute to institutional theory by providing it with a stronger basis in cognitive and affective psychology. We organise this contribution around the central question of what psychological preconditions must exist for institutions to determine behaviour and order our societies. We defend the notion that institutional theory may gain from such a contribution relative to the major existing currents of institutional thought. We then introduce new theory of the mind as a network structure within which the psychological process operates as an integrative framework which we might use to integrate insights from cognitive and affective psychology into institutional theory. We discover that institutions must be expressed as rules in mental networks which guide thinking and behaviour, be embedded within a cognitive apparatus such that they are called to mind by perception to so guide thinking and behaviour, and be anchored to emotion such that they are endowed with urgency in order for them to have a hold on individual behaviour. From this theory we derive definite predictions, as well as policy insights.

Philip J. Cook (Duke University - Sanford School of Public Policy; Duke University - Department of Economics; National Bureau of Economic Research (NBER)) has posted Gun Markets (Annual Review of Criminology, Vol. 1, pp. 359-377, 2018) on SSRN. Here is the abstract:

The systematic study of how available weapons influence the rates, patterns, and outcomes of criminal violence is new, but it is now a well-established and fast-growing subfield in criminology, legal studies, public health, and economics. This review focuses on the transactions that arm dangerous offenders, noting that if those transactions could be effectively curtailed it would have an immediate and profound effect on gun violence and homicide rates. Guns are legal commodities, but violent offenders typically obtain their guns by illegal means. Our knowledge of these transactions comes primarily from trace data on guns recovered by the police and from occasional surveys of gun-involved offenders. Because most guns used in crime are sourced from the stock of guns in private hands (rather than a purchase from a licensed dealer), the local prevalence of gun ownership appears to influence the transaction costs and the proportions of robberies and assaults committed with guns rather than knives or other weapons. Nonetheless, regulations that govern licensed dealers have been linked to trafficking patterns and in some cases to the use of guns in crime.

David Alan Sklansky (Stanford University) has posted The Problems with Prosecutors (Annual Review of Criminology, Vol. 1, pp. 451-469, 2018) on SSRN. Here is the abstract:

Most scholarship on prosecutors in the United States is diagnostic, prescriptive, or both; the motivating questions are, What is the problem with prosecutors, and how do we fix it? Answering those questions has been difficult, in part because there are at least seven different problems with American prosecutors. Six of those problems are relatively familiar: the power of prosecutors, the discretion they exercise, the illegality in which they too often are found to have engaged, the punitive ideology that shapes many of their practices, their often-frustrating unaccountability, and organizational inertia within prosecutors’ offices. These problems intersect, so they are difficult to address separately. The seventh problem is discussed less often but may be the most basic: the ambiguity of the prosecutor's role. That problem needs to be understood as well if progress is to be made addressing the other six.

Chad M. Oldfather (Marquette University - Law School) has posted Aesthetic Judging on SSRN. Here is the abstract:

This article offers a conceptualization of judges in the legal system as analogous to their namesakes in sports such as gymnastics and figure skating. It is, to a degree, a counter-intuitive suggestion. Figure-skating judges, after all, do not enjoy a reputation for being unbiased and scandal-free. Indeed, figure skating and aesthetic sports like it are often pejoratively referred to as “subjectively” judged. It is a seemingly curious model for a legal system that strives to avoid all these things.

There is no question that the more common analogy, which invokes the metaphor of the judge as an umpire, provides the judiciary with a more comforting public face. The value of thinking of judges in law as analogous to judges in aesthetic sport lies not in its public relations value, but rather in its ability to focus attention on aspects of the judiciary that the umpire metaphor obscures. Judges in both contexts draw on ineffable criteria that cannot be fully captured in words. These are the sorts of things that form the basis of characteristics, such as wisdom, which have taken a back seat in our metrics-obsessed era. To be sure, both types of judges thus stand open to suggestions that improper criteria – bias, politics, and the like – are the true drivers of their decisions. Both systems must therefore rely on institutional and procedural mechanisms, including a long process of acculturation in shared norms, together with a cluster of procedural and institutional features, to minimize the influence of improper considerations and to provide litigants, participants, and the public with an assurance that decisions are the products of appropriate considerations. Increased mindfulness of this dynamic takes on greater significance in a world, such as ours, marked not only by a fetish for the quantifiable, but also by broad and deep disagreement over core aspects of our culture.

As officials working in the executive branch and as stated under Article 15 of the Japanese Constitution, judges in the judiciary are public servants for the people. Their mission is to interpret the text of the Constitution and statutes when hearing court cases. Sixty years ago, the Japanese Constitution was drafted by both the American and Japanese people. It is important, though not critical, to interpret the records and intent of the drafters. We are not bound to the hand of the dead. Extreme textualist and originalist approaches are not adopted. By examining these arguments, however, we gain insight that can be used when reviewing the system and text carefully, and thus come to a more thorough understanding of the purpose. The Kojima, Naganuma, and Teranishi cases suggest that both the judiciary and judges should be independent. Under the current Constitution, we examined one questionable case of Judge Teranishi. Although we understand the mission of the judges is to work neutrally and fairly, as written by the Supreme Court, it is still questionable as to independence of judge. The judges’ salaries are guaranteed by the Constitution and regulated by the law. The salary is based on those of private sector workers. It is against the Constitution to reduce only the salaries of certain classes of judges, but it is not against the Constitution to reduce all of the salaries in the judiciary. The review of Supreme Court judges by the people was conducted at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten years, and in the same manner thereafter. This system is questionable because many Japanese people are unaware of the judges’ names and of the Supreme Court cases. The only way to remove a judge is through impeachment. The Japanese Constitution stipulates impeachment in the parliament; therefore, the Diet organizes impeachment committees in cases where judges are being sued. The politicians decide if the judge should be impeached. To date, several judges have been sued and impeached. Some reasons for this were political, and others were not. In Japan, we need to be vigilant against measurements that infringe on the independence of judges. The independence of the judiciary and judges is required for the formation of the legal mind to occur. Their duties can be fully exercised only after their positions become independent of the political powers of the executive and legislative powers.

Recently Niall Ferguson has begun a major assessment of the diplomatic career of Henry Kissinger. In his first volume of Kissinger (2015) Ferguson claims to have exploded the myth of Kissinger as the arch “realist” of American foreign policy. Ferguson puts this claim starkly when he asserts: “the young Kissinger was indeed an idealist.” (Ferguson, K, 32) This claim serves to breath more life into the ongoing debate between the proponents of the so-called “realist” and the “idealist” perspectives in international relations. This essay will offer a perspective on this debate by using Henry Kissinger’s conception of foreign policy as a case study. If any American is widely supposed to embody the realist perspective it is Henry Kissinger who was indirectly and directly involved in the formulation of American foreign policy from the very beginning of the Cold War right through to the end of the Vietnam War and into the present. The essay will begin by citing the statements that Kissinger made that, in Ferguson’s opinion, reveal Kissinger’s idealist conception of American foreign policy. The essay will then delve into Kissinger’s book Diplomacy (1994), and his American Foreign Policy (1974) in an effort to attempt to understand the intricacies of Kissinger’s conception of the relationship between idealist morality and realist strategy.

Jon D. Michaels (University of California, Los Angeles - School of Law) has posted The American Deep State (93 Notre Dame Law Review 2018 (Symposium Issue)) on SSRN. Here is the abstract:

Given the mood of the nation, there is good reason to reject the very premise of an American deep state. This is especially true so long as the concept serves primarily as fodder for conspiracy-mongering and fuel for the domestic culture wars. Yet such a wholesale rejection of the "deep state" label comes at the expense of accuracy, nuance, and opportunity. In truth, we do have—and have long enjoyed—bureaucratic depth. And Donald Trump, more than any other president, has brought into relief its legal and political raisons d'être.

This Essay insists that the American deep state has very little in common with those regimes—think Egypt, Turkey, and Pakistan—usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial or caste incentives to subvert popular will; that demotic depth of the American variety should be celebrated, not feared; and that, going forward, we need greater not lesser depth insofar as the American bureaucracy serves an important, salutary, and quite possibly necessary role safeguarding our constitutional commitments and enriching our public policies.